Questions of Fact About Liability for Broker Commission After Expiration of Brokerage Agreement

The seller entered into a brokerage agreement providing for a 5% commission if seller entered into a contract of sale or sold the property within 60 days after termination of the agreement if the buyer had been shown the property during the term of the agreement. The agreement expired in August 2016, but the parties extended it until January 2017. The parties dispute whether they subsequently entered into an oral agreement for an open listing. In December 2017, the seller contracted to sell the property to the long-time tenant, with whom a prior sale attempt had fallen through. The contract identified the broker by name, and provided that seller would pay any commission earned pursuant to a separate agreement between broker and seller. When seller failed to pay a commission, the broker brought this action and moved for summary judgment. The New York Supreme Court denied the motion and broker appealed.

In affirming, the Appellate Division held that questions of fact about the seller's obligation to pay a commission precluded summary judgment. The court concluded that the contract of sale did not clearly admit that the broker had performed services with respect to the sale contract and did not clearly establish seller's obligation to pay a commission on that sale.